There have already been comments on Ethics Alarms regarding Robert Mueller’s surprise public statement to, I assumed, clarify some things being muddled in the political grandstanding and media mush. Frankly, I am not certian what he thought he was doing, but my suspicions aren’t pretty. The statement was either unethical, or incoherent. Just so we are on the same page, here is the full statement. I’ll be back at the end…
Good morning, everyone, and thank you for being here. Two years ago, the acting attorney general asked me to serve as special counsel and he created the special counsel’s office. The appointment order directed the office to investigate Russian interference in the 2016 presidential election. This included investigating any links or coordination between the Russian government and individuals associated with the Trump campaign.
Now, I have not spoken publicly during our investigation. I am speaking out today because our investigation is complete. The attorney general has made the report on our investigation largely public. And we are formally closing the special counsel’s office and as well, I’m resigning from the Department of Justice to return to private life.
I’ll make a few remarks about the results of our work. But beyond these few remarks, it is important that the office’s written work speak for itself.
Let me begin where the appointment order begins, and that is interference in the 2016 presidential election. As alleged by the grand jury in an indictment, Russian intelligence officers who are part of the Russian military launched a concerted attack on our political system.
The indictment alleges that they used sophisticated cyber-techniques to hack into computers and networks used by the Clinton campaign. They stole private information and then released that information through fake online identities and through the organization WikiLeaks. The releases were designed and timed to interfere with our election and to damage a presidential candidate. And at the same time as the grand jury alleged in a separate indictment, a private Russian entity engaged in a social media operation where Russian citizens posed as Americans in order to influence an election.
These indictments contain allegations and we are not commenting on the guilt or the innocence of any specific defendant. Every defendant is presumed innocent unless and until proven guilty.
The indictments allege and the other activities in our report describe efforts to interfere in our political system. They needed to be investigated and understood. And that is among the reasons why the Department of Justice established our office.
That is also a reason we investigated efforts to obstruct the investigation. The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.
Let me say a word about the report. The report has two parts, addressing the two main issues we were asked to investigate.
The first volume of the report details numerous efforts emanating from Russia to influence the election. This volume includes a discussion of the Trump campaign’s response to this activity as well as our conclusion that there was insufficient evidence to charge a broader conspiracy.
And in the second volume, the report describes the results and analysis of our obstruction of justice investigation involving the president. The order appointing me special counsel authorized us to investigate actions that could obstruct the investigation. We conducted that investigation and we kept the office of the acting attorney general apprised of the progress of our work.
And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.
The introduction to the Volume 2 of our report explains that decision. It explains that under long-standing department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited.
A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider. The department’s written opinion explaining the policy makes several important points that further informed our handling of the obstruction investigation. Those points are summarized in our report and I will describe two of them for you.
First, the opinion explicitly permits the investigation of a sitting president because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.
And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.
And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.
So that was Justice Department policy. Those were the principles under which we operated. And from them, we concluded that we would not reach a determination one way or the other about whether the president committed a crime. That is the office’s final position and we will not comment on any other conclusions or hypotheticals about the president.
We conducted an independent criminal investigation and reported the results to the attorney general, as required by department regulations. The attorney general then concluded that it was appropriate to provide our report to Congress and to the American people. At one point in time, I requested that certain portions of the report be released and the attorney general preferred to make — preferred to make the entire report public all at once and we appreciate that the attorney general made the report largely public. And I certainly do not question the attorney general’s good faith in that decision.
Now, I hope and expect this to be the only time that I will speak to you in this manner. I am making that decision myself. No one has told me whether I can or should testify or speak further about this matter.
There has been discussion about an appearance before Congress. Any testimony from this office would not go beyond our report. It contains our findings and analysis and the reasons for the decisions we made. We chose those words carefully and the work speaks for itself. And the report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress.
In addition, access to our underlying work product is being decided in a process that does not involve our office.
So, beyond what I’ve said here today and what is contained in our written work, I do not believe it is appropriate for me to speak further about the investigation or to comment on the actions of the Justice Department or Congress. And it’s for that reason I will not be taking questions today, as well.
Now, before I step away, I want to thank the attorneys, the FBI agents, the analysts, the professional staff who helped us conduct this investigation in a fair and independent manner.
These individuals who spent nearly two years with the special counsel’s office were of the highest integrity. And I will close by reiterating the central allegation of our indictments, that there were multiple systemic efforts to interfere in our election.
And that allegation deserves the attention of every American. Thank you. Thank you for being here today.
My analysis of this will be mercifully brief.
1. Mueller said that his statement was to announce that the investigation was over. That part of the statement could have been completed in about two sentences.
2. One may conclude that the statement was also designed to deny recent reports in the news media that he had begun drawing up an indictment of President Trump, but changed his mind. Mueller is clear on that, at least: he could not indict the President, and would not, so he obviously didn’t start drafting what he could not use.
3. Mueller said that the report speaks for itself and nothing else needs to be said. Then he set out to further frame the report. He contradicted himself blatantly in this, and undermined whatever credibility he has. His credibility with me instantly fell with that statement.
4. Mueller said,
“And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.”
Yet earlier in the same statement, he phrased his words to sound like he was potentially accusing the President of a crime:
“And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so.”
If Mueller says he and his team did not have confidence that the President did not commit a crime, then by his words, that is the same as saying that he may have committed a crime, an which is what a “potential accusation of a crime” means, by my dictionary. Mueller had just said that doing what he just did is unfair.
It sure is. In fact, it’s a serious breach of prosecutor ethics. D.C. Rule of Professional Conduct 3.6 states,
The prosecutor in a criminal case shall not:
(f) Except for statements which are necessary to inform the public of the nature and extent of the prosecutor’s action and which serve a legitimate law enforcement purpose, make extrajudicial comments which serve to heighten condemnation of the accused
Not only is that what Mueller’s statement did, it appears hard to believe that this wasn’t what it was designed to do. DOJ’s formal policy manual on the duties of federal prosecutors and principles of federal prosecutionsa lso explicitly forbid what Mueller did today:
“As a series of cases makes clear, there is ordinarily ‘no legitimate governmental interest served’ by the government’s public allegation of wrongdoing by an uncharged party, and this is true ‘regardless of what criminal charges may . . . b[e] contemplated by the Assistant United States Attorney against the [third-party] for the future.”
It is not the prosecutor’s job to prove anyone innocent. Everyone is presumed innocent under the law. Yet Mueller, even after making a point of saying that indicted Russians should be presumed innocent, phrased his statement about obstruction of justice in order to suggest that the President was guilty because his team couldn’t pronounce him not guilty.
Mueller’s statement confirmed what his harshest critics had claimed, and what I had previously refused to believe. He was a politically motivated, unethical prosecutor who desperately tried to give the Democrats what the needed to impeach the President, and could not make the case. Finally, he tried to do what he could to satisfy his disappointed allies through innuendo and an unethical, extra-legal framing of his report.
Ethics Alarms 
You confirmed my evaluation of what I heard today from Mueller.
I no longer have any faith in our judicial system. If they want to get you you are screwed.
Since when is it incumbent on the target of the investigation cooperate and truthfully tell everything to investigators in such investigations?
Wouldn’t including Trump as a potential Russian operative corrupt the investigative landscape if they are making decisions on guilt based on his actions to deal with Russian actors after his inauguration?
Why is professing innocence an indicator of guilt?
To what extent did Mueller investigate the prior administration’s efforts to prevent said interference?
Didn’t Obama make light of Russian hackers when he said he told them to “cut it out”, so why is Trump’s quip about Russia releasing the 30K emails an indicator of guilt?
Finally, why was Bernie Sanders never considered as a Russian operative given that the info released showed how Clinton and the DNC screwed him?
Why isn’t Bernie Sanders considered a Russian operative for having honeymooned i the Soviet Union, before it was the former Soviet Union? Aren’t contacts with Russians evidence of guilt?
Think about this for a moment:
The FBI tried to frame the president of the United States for something that the opposing party did. They had the gall to attempt to frame the most powerful person on the planet. If you’re not afraid of what they can do, you’re nuts.
The FBI tried to frame the president of the United States for something that the opposing party did.
This statement was framed as if three parties…the two Parties and the FBI.
For two years, the FBI was the Other Party.
I was repeatedly told that Mueller was as fair as they come; not only that, he was a republican. Then came the info about the people he chose to be on his team like Strzok. Next was the report that included second-hand details intended to embarrass the president like the infamous “l’m f-ed” comment (that had no place in a truly fair report). Now this statement had removed any small bit of respect I had for the man.
Sadly, I have to agree.
Shadow,
I have to agree with you. I am beginning to think that the judicial and intelligence communities are corrupt. Comey (supposedly a man whose character is unassailable), Mueller (whom everyone said was honest, competent, and fair), Brennan (a career politician and patriot, we are told), and Clapper (?!) have all demonstrated utter contempt for the legal process. Mueller’s comments are beyond the pale. How does an accused prove a negative. And why are the morons (yeah, I know . . . ) in the media parroting this nonsense?
What does this even mean? “And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so.” To my mind, that is not how the system works. By referring to Russian indictments in the same breath as Trump, he is stating that Trump is, in fact, guilty of obstruction and other crimes, handing the Nadlers of the world ammunition for impeachment.
I watched Don Lemons for about 2 minutes before I had to run away. He is so thoroughly convinced Trump is a bad man. It was embarrassing.
jvb
Bill Kristol and Jeff Flake are, and John McCain was a Republican in life so this argument that they should have great credibility because they are in the same party is ludicrous. Any of them would find a way to ensure Trump was up the creek without a paddle in piranah filled waters
Thanks for the explanations.
I was swirling around what Mueller said, I knew it didn’t sound right for him to be saying those things but I couldn’t pinpoint why. Maybe someone should file a complaint about Mueller’s exiting comments?
Jack,
I watched the Mueller Statement as he was presenting it and was stunned by the unprofessional double-talk as you pointed out. It was a pure, transparent, self-serving CYA speech that served only to muddy an already muddied Report, Part II, Re: Obstruction.
In such a Federal Investigation as this Special Counsel, why all the difficulty and confusion?
1) What is the legal definition of Obstruction of Justice?
2) What are the Elements necessary to prove Obstruction?
3) Can you provide an example of what Trump would have had to do to commit the crime of Obstruction of Justice?
4) Either there was damning , provable evidence or there wasn’t.
Why, after years of decisiveness occurring in our Country after the Trump Election, would Mueller not take extraordinary measures to put out a clear, precise, unambiguous Report for the good of our a Nation ?
He was afforded a most unique opportunity to completely resolve a national dispute in such a way as to bring about healing. He failed miserably and betrayed the entire Country by sowing more seeds of distrust, discord, and chaos. I cannot imagine he will ever know true peace for what he has done and what he failed to do.
If Mueller had a case he could simply say. . . “if not for the long standing policy of not indicting a sitting president I would have issued an indictment. Thus, if Congress believes the president’s acts rise to impeachable offenses that is only Constitutional remedy available.”
If that is what he meant he should have stated it unequivocally and not suggest suggest guilt without giving any chance for rebuttal. Mueller should never be trusted ever again.
Bingo
Yep.
Ian asked,
“Why, after years of decisiveness occurring in our Country after the Trump Election, would Mueller not take extraordinary measures to put out a clear, precise, unambiguous Report for the good of our a Nation?”
My answer: Because his investigation did not result in the answer he and his cronies wanted/needed to impeach a person they believe is the illegitimate president. But for Russia, in their minds, Clinton wins. So, because Mueller could not find the evidence necessary to implicate Trump in the obstruction/collusion crimes, regardless of DOJ policy, he had to write a report filled with salacious details and innuendo to smear Trump. He then, a supposed career prosecutor and man of high integrity, turned the US criminal justice system into the Napoleonic Code. Now, the accused has to prove innocence. Indictments are sufficient to convict and the burden is now on the accused to rebut the presumption of guilt beyond reasonable doubt.
Mueller knows the standards. Mueller and that bozo Comey (I always thought he was a weasel, a self-appointed paragon of virtue – prove me wrong) know what the elements of the crimes are. Neither one of those two had any facts to support indictments against Trump.* Consequently, they had to write reports and make statements in the light most unfavorable to Trump and his administration. Shameful. But, the clapping seals in the media, social media, Democrats, etc., have taken Mueller’s idiotic comments as the basis for impeachment.
And who honestly believes this is not a coup?
jvb
*Ed. Note: Hell, Comey said that Clinton’s handling of national security was “reckless” but not intentional. How could that be? She set up an insecure computer system in her frickin’ home outside of the control of the federal government. Why would she do that? She’s not stupid and she is not a novice to national security. She did it to avoid scrutiny. Does anyone really believe that that 30,000 emails are about yoga and her daughter’s wedding? If so, that’s a lot of yoga and wedding planning.
The best I can guess is that Mueller REALLY doesn’t want to testify before Congress and just wants to be done with all of this. So he threw as much chum into the water for the Congressional Democrats as possible, allowing them to see him as “on their side” against Barr, giving the impression that he supports impeachment, and continuing to feed their preferred narrative. At the same time, he makes it clear that he doesn’t want to be bothered by them any more. I think it’s clear Mueller is not fond of Trump, but I really don’t know if he wants to help the Democrats, is afraid of falling afoul of them, or just wants to keep his hands clean of them if the whole Russian Collusion scheme turns into a historic black mark of shame that taints everyone involved for life.
I read in between the lines a little, and it in the context that Senate Democrats have largely refused to read the less redacted report that Barr released to them, I think he was venting a little frustration at them, basically:
“No, I’m not going to answer any more of your damn questions, my findings are in the damn report, which you have, fucking read it.”
Agreed. But, who is he to tell Congress that he is so done with the investigation? He is saying, “Yo, ep. Nadler! I’m outta here! You need anything, it is in the book! See yas!” Amazing. You or I try something like that and let’s see what happens, eh?
You do remember Pontius Pilate, yes?
Mr. Marshall,
Thank you kindly for the prompt legal explanation of the Mueller report. I would hope he would face some legal charges for his breach of legal ethics.
Mr. Marschner, I certainly wish the questions you asked would get answered in reality. I hold a slim to none odds that they will.
Also a hearty thank you to all who take their time to contribute comments and analysis on this site.
What was particularly odd, at least to me, were the passages surrounding the constitutionality of a sitting President being charged by the DOJ. I mean… That assertion is muddy at best, and perhaps only stands because it has not been tested…
But even if you believe that *the president* could not be indicted by the DOJ, the people who were not the president that you were investigating sure as hell could be, and yet, Mueller failed to outline a *single* person the DOJ should indict on any charge other than the most benign of procedural claptrap.
That is…. either Mueller was talking out his ass, and it wasn’t the “departmental policy” holding him back, or the only person in the entire administration up for charges would be Trump, and if you believe that, I have a slightly singed French cathedral to sell you.
If the policy says he can’t indict why does this policy only brought up for issues on obstruction and not on the issue of potential conspiracy.
Given all the players involved why was the president the only one Mueller claimed he could not exonerate? For what purpose is he making that statement except to taint the accused?
Who cares, Chris. Prosecutors are supposed to prosecute guilty people. They aren’t supposed to be in the business of exonerating innocent people. Verdicts are either “guilty” or “not guilty.” ‘Innocent” is not on the menu for juries. Do we really want a Department of Innocence?
I think Meuhler is a political hack. He gave Adam Schiff and Jerry Nadler two more years worth of runway.
OB
I agree, my point was that he only related that policy to the issues of obstruction not the alleged underlying crimes of conspiracy with the Russian operatives. Why was Mueller hired if he can’t decide anything. The indictments against the Russians will never go to trial so he will never have to prove a damn thing. It’s all theater.
I would love to ask these clowns if they can unequivocally exonerate Hillary Clinton conspiring with foreign agents to affect the election. That should be the first question asked just to get reactions from Nadler, Schiff, and the others packed into that clown car.
Great question. These guys are NASTY.
The indictments against the Russians are merely for show. But, why isn’t this whole collusion/Russian interference laid at the feet of the prior Administration? Obama told us our electoral process was safe from hackery. Turns out he got that wrong, along with so much else. He scolded Putin, with wagging finger and all. I guess that put Moscow in its place. Oh. That’s right. It was Moscow. It was Kiev. Sorry. Never mind.
jvb
Let me translate: I failed at my deep state appointed job. I could not find any prosecutable evidence. So let me offer one last propagandistic entree for the news media to feed the public. Trump could not be proven innocent, so let the big lie continue and widen the gap between the thinking and non-thinking. If we can’t control the country by process, we’ll control it by chaos. Hope this works.
Spot on
Completely right, but it should also say: At this point I’m referring this to Congress without referring it to them, in the hopes that they can accomplish by hard and dirty politics and a murky standard of proof what I couldn’t by the process and the criminal standard of proof. Trump, you probably either got to enough people, you covered your tracks too well, or some combination of both, but that won’t fly when the Three Sisters (AOC, Tlaib, Omar) come for you.
I like this “Three Sisters” thing. One could add some spice by invoking Macbeth though. If you called them the “Weird Sisters” you could get the double benefit of getting to call them weird and implying that they’re witches while maintaining the enumeration of three and all with a classy Shakespearean air. Double word score if you wear a white ruff collar.
Hmmm. Well, the original three sisters title was something I picked up from a co-worker who likes them and says they are setting the example of “go big or go home,” but this would turn it around. I also referred to the Democratic women in Congress at the time of the SOTU as the “tighty whiteys” due to their affecting white and sour expressions, but it didn’t catch on. I know Jack is against “niggerizing” the political opposition (i.e. tarring them with a nasty name that trips them up right out of the gate) but at this point all bets are off.
Bravo.
jvb
Bingo. Mueller was incoherent, unethical in a legal sense, and unethical in any sense when he did that.
He has been roundly criticized, too, by every legal commenter not afflicted with terminal TDS on the identical grounds of legal ethics you raise.
But more importantly, it is the refusal to take a position that is most infuriating. If he had simply said, “We believe the president was guilty of the crime of obstruction, but decided we were foreclosed from charging him by the OLC memo,” I would’ve had more respect for him.
But his rejection of that position, intended to occupy some gray area between “We couldn’t prove it, but we believe he did it” and “He didn’t do it” is exactly the ground that the Rule of Professional Conduct requires prosecutors not to enter. He did it anyway, both in the report and in the news conference.
The damage done to both our legal system, the Presidency, and the country by this man is significant, and will be lasting. I cannot fathom, if he is not a partisan opponent of Trump, why he would do such a dreadful thing.
Nice comment, Glenn. As usual. Great last paragraph. He seems to be one extremely vicious son of a bitch.
I think Meuhler was simply providing cover for his buddies at the FBI, DOJ and CIA (did I leave anyone out?). There’s going to be an investigation of the Trump Russia Hoax and Meuhler wants to impede and slow it down by keeping the obstruction impeachment investigation going in Congress to keep the pressure off his buddies. Absolutely Machiavellian. And done with the apparent rectitude of Bible Thumper.
Alan Dershowitz:
“No prosecutor should ever say or do anything for the purpose of helping one party or the other. I cannot imagine a plausible reason why Mueller went beyond his report and gratuitously suggested that President Trump might be guilty, except to help Democrats in Congress and to encourage impeachment talk and action. Shame on Mueller for abusing his position of trust and for allowing himself to be used for such partisan advantage.”
https://thehill.com/opinion/judiciary/445983-dershowitz-shame-on-robert-mueller-for-exceeding-his-role
Jeez…scoop the opening of today’s warm-up why don’t you…
Oops. Sorry Jack. I was never a Dershowitz fan, particularly because I could very easily picture him having a wonderful time sport-fucking among the female HLS student body, an entitlement that really enrages me. But he has really distinguished himself since the left (his former home) has refused to accept the results of the 2016 election.
Yeah, he was one of the ones I was talking about above.
Pretty compelling. I’m convinced.
You could be right. At this point, you’d have to believe there was some… motivation to do what was clearly forbidden by legal ethics, and to do so almost casually. Even more remarkable to emphasize that same unethical position in a parting news conference.
It’s hard to imagine that someone as experienced as Mueller did not understand what he did. Therefore, he must’ve done it for some reason. Yours is as plausible as any I can come up with.
Thanks. I can’t comment on his state of mind, because I can’t fathom why he did it.
You’r’e welcome.
I have been following criminal lawyers on Facebook. I am shocked at the number of them who want to abandon due process, the Constitution, the Rule of Law, and the presumption of innocence because Trump is a bad, bad man in their eyes.
jvb
Yep. I’ve seen it also. It’s truly frightening that a lawyer would embrace “the ends justify the means” when it comes to applying criminal law and procedure to Trump.
“…he tried to do what he could to satisfy his disappointed allies through innuendo and an unethical, extra-legal framing of his report.”
Yes! I believe it was James Carville who said,” Never does a man stand so tall as when he stoops to kiss an ass.” Mueller was standing tall yesterday!
Quick question:
My understanding is that Mueller was an investigator in this investigation not a prosecutor. Doesn’t that mean Mueller couldn’t indict anyone, he had to pass the evidence and recommendation to indict to prosecutor and prosecutor was to make the final decision on whether to indict or not based on if they thought the evidence was sufficient to prosecute.
Am I understanding this correctly or incorrectly?
They didn’t use advanced techniques. They used spearfishing to nail an idiot who used the password “p@ssword” as his email password.
The Russians used the dastardly tactic of releasing the truth about the candidate.
Here’s a thought. When does leaving a computer so unprotected that the contents can be considered in plain view.
If government can come on your property, open up a trash can to retrieve potential evidence because there could be no expectation of privacy it seems likely that at some point the government will say that affirmative steps must be taken to secure private data otherwise it is treated as being in plain view.
I have a friend who has asked me to fix her computer, if I can. Apparently, she and her daughter were curios about the Dark Web, and actually expended a lot of effort and time finding it. I should also mention she had NO virus or malware protection. After various mis-adventures, a scree-filling eye appeared. It then slowly closed, and when it did, her computer no longer functioned. I think I can fix it, depending on how ruinous the code was, but she simply didn’t know what she was getting into. Whatever else happens, she has lost everything that was on that computer. Fortunately, she did not do on-line banking or ordering and didn’t use e-mail.
I would replace the hard drive and flush the bios, dd. There is no way to trust the security of those devices again.